Valley Dry Goods Co. v. Buford

75 So. 252 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

Olive Buford, the appellee, a minor, was employed to work in the store of the appellant, a dry goods establishment or department store. She alleged that on or about the 10th of March, 1915, she was called to the office of the manager, and by the manager of the company with some detectives who had been employed by the appellant she was asked as to her financial condition and the financial condition of her people, and was then and there charged by the appellant with stealing a sum of money out of a cash transaction in the store, saying that the plaintiff was working as a partner in the theft with Miss Palmer, a saleslady in the store. She alleges that she protested her innocence, but was insulted and browbeaten and charged with larceny by the agents of the said company acting on behalf of the company. She alleges that the said agents continuously called and charged her with being a liar, thick head, and thief, and other disreputable things. She alleges that the defendant and its manager then proceeded to use so-called third degree methods to extort a confession of guilt of some theft, and that she was asked to write a statement that, she had stolen money from the company to the amount of one hundred dollars; that she refused to do so, and the three men began abusing , her and telling her that if she did not write said statement that they would have her handcuffed and taken by police officers through the streets to the jail, and that this would disgrace her and destroy her reputation in the whole community; that she was coerced and intimidated into writing some statement which she alleges she did not know the contents of, that she was a minor and acted under duress in the fear of being handcuffed, taken to jail, and disgraced, and was forced to sign the said writing, but alleges that said written statement was untrue and false, and that she never would have written it but for fear, and that after writing said statement she was told that she must get twenty-five dollars at once and keep absolute silence about the matter; that she was directed to go and get the money and return, and if she did hot return, she would be arrested and placed in jail. Plaintiff further alleges that on the 10th day of March, 1915, said defendant company, acting through its manager, Mulvihill, and said agents told and published to Joe Palermo and others the said slanderous and defamatory charges and false accusations' made against her; that as a result of said publication the news of the matter was quickly spread throughout the community. She sued for twenty thousand dollars damag’es. The defendant, the Valley Dry Goods Company, filed a plea of general issue and under the general issue gave notice that it proposed to prove under this plea of the general issue that the words that were in fact spoken were spoken by the employees of the defendant to the plaintiff in the discharge of the duty said employees had to perform for the defendant, and that the words spoken were spoken in good faith, without malice, in the belief that it came within the discharge of said duty, and, further, that the words in fact spoken to the plaintiff were spoken in good faith, with-, out malice, to those who had an interest in the communication and in the protection of the defendant’s interest as the employer of the plaintiff who had a right to know and act upon the facts stated and the information derived, or sought to be- derived, from the actual language used, plaintiff at the time being a clerk in the defendant’s store and in the defendant’s employment. Wherefore they claim that it is a qualified privilege. These pleas were filed on the 26th day of January, and on the 28th of January motion was filed to require the plaintiff to make the allegations of the declaration more definite and specific, in that she be required to set forth the slanderous words in haec verba, or synonymous words, and to make her declaration more definite and specific, in that she be required to set forth by whom the slanderous words were uttered, time and place uttered, and to whom the communications were published. This motion was overruled by the court, and the cause proceeded to trial.

It appears from the evidence that the Valley Dry Goods Company employed Miss Buford as a cashier and package wrapper, and that in the department in which she worked was a Miss Palmer, who was employed as a saleslady. The company employed detectives to investigate their employees, and on the day Miss Buford was examined, Miss Palmer was sent to the office and, it is claimed, made a confession to the theft, in which she implicated Miss Buford as her confederate or partner. After the examination and conversation with Miss Palmer tind Miss Buford, each of which were conducted separately, Miss Palmer’s brother came to the store and learned of the accusation against her, and he sent for Miss Palmer’s brother-inlaw, Mr: Palermo. Mr. Palermo arrived and had an extended conversation with the manager of the company, in which conversation the manager related to Mr. Palermo that Miss Buford had stolen articles from the store and that she had made and signed a confession and had gone to procure the money to pay the amount that was stolen, and that the case against Miss Buford was practically settled. Mr. Palermo was not related to Miss Buford, and was not in any way acting for or on behalf of Miss Buford at the time of the conversation referred to. It appears that the detectives were employed on the basis of fifty dollars as compensation, and in addition were to have one-half of the sums secured from the employees. Miss Buford testified that she had not stolen anything from the company and was not in partnership or in any arrangement with Iffiss Palmer in taking goods or money from the store. Miss Palmer testified for the plaintiff that she did not implicate Miss Buford ,at all in the statement that she made to the manager of the Valley Dry Goods Company, and that Miss Buford had not stolen anything to her knowledge. Mr..Palermo testified for the plaintiff that Mr. Mulvihill, the manager, told him that Miss Buford had stolen twenty-five dollars and had signed a written confession, and that he was not, at the time of the said conversation or at any other time, the agent or representative of Miss Buford, and that the said statements were made to him voluntarily by the said manager of the appellant. There was a verdict for the plaintiff for five thousand dollars and the Valey Dry Goods Company appeals.

Several contentions are advanced as to why the case should be reversed. It is first contended that the declaration was insufficient, in that the exact words,- or synonymous words, of the manager of the -company in communicating to Mr. Palermo the statement with reference to the stealing are not set forth, and that the court erred in refusing to require that to be set out on motion. It is also insisted that the conversations above set forth were privileged and not actionable, on the theory that Miss Buford and Miss Palmer were employees of the company, and that they were made to Mr. Palermo as a representative of Miss Palmer, who had an interest in the matter. It is also alleged that some of the instructions were -erroneous in using the word “uttered” instead of “published,” and there is also complaint of certain statements made in argument by attorneys for the plaintiff and objected to and excepted to by the defendant.

We think that the statement in the declaration that the defendant unlawfully and maliciously charged plaintiff with stealing a sum of money out of a cash transaction in the store, and that the plaintiff was working as a partner in the theft with Miss Palmer, a saleslady in the store, and that she was charged with being a “liar,” “thick head,” and “thief” by the manager and agents of the company, and that these statements were published to Mr. Joe Palermo was a sufficient allegation in the declaration as to the publication, and that there is no material variance in the proof on this point. In our state it has always been sufficient to allege the words or synonymous words which constitute the slander. Under all the authorities, accusing a person of being a thief is actionable per, se. There was no demurrer to the sufficiency of the declaration, but a motion under 762 of the Code of 1906 to make the charges more specific. Looking at the record as a com-, píete trial, we think the allegations of the pleading and the proof in the case substantially agree, and that there was no error or prejudice which resulted to the defendant by overruling this motion. There was no other person relied on than Mr. Palermo to make a publication, and the declaration declared with sufficient certainay the time, person, and place to whom the publication was made.

We now come to the question of whether the communication to Mr. Palermo was privileged. As we see the matter, Mr. Palermo had no interest in or relation to Miss Buford, and inasmuch as charges had been preferred against Miss Palmer, and inasmuch as she had made the confession of her wrong upon which the defendant- had investigated her, we think the company had no right to disclose to Mr. Palermo, under the circumstances in this record, the statements and written confession made by Miss Buford. We think there was no privilege in making this publication; that if there was a qualified privilege at all, under the circumstances in this record, the privilege was exceeded when the communication was made to Mr. Palermo.

We do not think there is any merit in the contention that the word “uttered,” used in the instruction, was not equivalent to the word “published.” The terms have practically the same legal significance, and the contention that the term “uttered” could be applied to the words used in the office in the conversation between Miss Bufofd and the manager and detectives, instead of when used to Mr. Palermo, is without merit. The manager of the defendant testified before the jury, denied the coercion claimed by Miss Buford, and presented fully defendant’s side of the evidence. The detectives were not offered in evidence, and failed to testify in the ease.

The instructions were liberal to the defendant, presenting fully and accurately the law of the case from the defendant’s standpoint.

In the opening argument for the plaintiff Senator Murray, one of counsel for plaintiff, stated that he believed Miss Buford was a truthful woman, believed every word she said on the witness stand, and believed she was telling the truth, which statements were objected to, and are complained of here. "Whatever may be said of the propriety from an ethical standpoint of this language, we do not think that there is any error that would reverse- the case. Counsel must be allowed wide latitude in their arguments. They are employed to present one side of the cause to the jury and must be allowed wide discretion as to methods in presenting their arguments. We assumé the jury would expect counsel to believe his client whether the jury believed it or not. We do not think the jury would be misled by an expression of belief by an attorney in the case. Mr. Murray further referred to the absence of Mr. Morris and Mr. Meinor, the detectives employed, and asked why they were not present or their depositions taken, that it would have been interesting reading to the jury. It does not appear in the record where these people' live, nor that the defendant was familiar with their residence or place of abode. It appears that they were not residents of the state, and it could hardly be said that these men employed by the company were equally available to the plaintiff as to the defendant, and for this reason there could be no error in the remark. The appellant also complains of arguments made by Mr. Kelly of counsel for the plaintiff. Mr. Kelly in argument says:

“Why was it that Mr. Mulvihill, manager of the defendant store, and the.detectives, Morris and Meinor, had selected these poor girls as the ones from whom they attempted to extort money? Why did they not select some -man able to look them in the face and talk back to them and act independently of them rather than to select these poor, helpless girls, who were unable to defend themselves from their assaults” which remarks were objected to. It- is further complained that Mr. Kelly in his closing argument, responding to the

argument of the counsel for defendant that the plaintiff was not corroborated as to the money she returned being her sister’s money, in which counsel for the defendant asked why was not the sister introduced to inform the jury whether or not it is true that she contributed in money to the plaintiff. Mr. Kelly in reply stated that he would tell the jury why the sister had not been introduced, and that was because she was off nursing her poor little sick baby, her own flesh and blood, back to life, and was not able to be present. It is contended that this is a statement of fact not in evidence, and constituted error. We fail to see any reversible error in the argument. Looking at the trial as a complete trial, we think that each side had its case fully and fairly presented, and that it is the function of the jury to determine the truth of the matters in issue and the amount of the verdict. Taking the jury’s finding as believing the evidence of the plaintiff, we think the verdict was not excessive. The case is- therefore affirmed.

Affirmed.